Three Wisconsin voters, backed by the state’s Democratic Party, filed a lawsuit Thursday asking a court to let absentee voters cancel already-submitted ballots and request new ones — a move that comes amid a chaotic Democratic primary race for governor.
The legal action would directly benefit voters who mailed in their ballots for candidates who have since withdrawn from the race. Lt. Gov. Sara Rodriguez stepped away from the race last week, and just one day later, Milwaukee County Executive David Crowley — who had previously exited the race on July 8 — announced he was jumping back in.
Despite their withdrawals, Rodriguez’s name still appears on the ballot, as does former state economic development director Missy Hughes, who dropped out back in June.
Whoever wins the Democratic primary will face Republican U.S. Rep. Tom Tiffany, who faces only minimal opposition within his own party. Democratic Gov. Tony Evers is not running for a third term, and Democrats are hoping to hold onto the governorship while also flipping both chambers of the state Legislature — which would give them full control of state government for the first time since 2010.
Time is short. The August 11 primary is fast approaching, leaving courts little room to act. The lawsuit was filed in Dane County Circuit Court in Madison, the state’s capital.
The suit asks a judge to block the Wisconsin Elections Commission from sending guidance to the approximately 2,000 local election clerks across the state telling them that voters are not permitted to request a replacement ballot. The commission approved that guidance on July 9.
According to the elections commission, close to 91,000 absentee ballots have already been turned in. Under current rules, any voter who cast their ballot for Rodriguez or Hughes has no option to switch their vote to a candidate who is still running.
The lawsuit warns that without court intervention, “potentially thousands more Wisconsin voters” beyond the three who filed the suit “will be disenfranchised.”
The complaint argues that the commission’s stance breaks state law and violates the Wisconsin Constitution’s protections for voting rights and equal treatment under the law.
Spokespersons for both the elections commission and the state Department of Justice, which would represent the commission in court, had not responded to requests for comment as of Thursday.
The practice at the center of the dispute — known as ballot spoiling — is rarely used. It allows an absentee voter who has already submitted a ballot to cancel it and receive a new one. The procedure was previously challenged in a 2022 lawsuit brought by a Republican group. A Waukesha County judge sided with that group, ruling that the elections commission had to withdraw its guidance permitting ballot spoiling.
However, a state appeals court stepped in and put that ruling on hold just weeks before that fall’s midterm election.
Then this past February, a state appeals court threw out the earlier ruling entirely, finding the lawsuit had not been properly served. The appeals court did not weigh in on the actual legal arguments in the case.
In spite of that outcome, the elections commission voted 4-2 to bar voters who have already submitted absentee ballots from obtaining a new one. One Democratic commissioner sided with three Republicans to support the ban, while two Democratic commissioners voted in opposition.
